Tribunal decisions

The decision

Upper Tribunal
(Immigration and Asylum Chamber) Appeal Number: oa/10018/2012

THE IMMIGRATION ACTS

Heard at Field House
Determination Promulgated
On 2 May 2013
On 1 August 2013

Before

UPPER TRIBUNAL JUDGE GLEESON

Between

SECRETARY OF STATE FOR THE HOME DEPARTMENT
Appellant

and

amr mohamed ismail hussein

Respondent

Representation:

For the Appellant: Mr T Wilding, Senior Home Office Presenting Officer
For the Respondent: Mrs Wendy Ismail, Sponsor

DETERMINATION AND REASONS
1. This is the appeal of the Secretary of State against the decision of the First-tier Tribunal allowing the claimant's appeal against the Entry Clearance Officer's refusal to grant him entry clearance as a spouse under appendix FM of the Immigration Rules.
2. The application for entry clearance was refused for a number of reasons, only one of which is still in issue, and that is the claimant's English language ability. When submitting his application, the claimant indicated that he hoped to be exempted from the English requirements of the Rules on the grounds of disability. The claimant has a speech and memory disability and a weakness in one hand, due to hemiparesis, which he contended prevented him from sitting the English language test required by the Rules in the usual form. He had been employed since 2009 by Egypt Air, which has a 5% disabled staff quota. The Entry Clearance Officer declined to make Special Arrangements and it is common ground that at the date of the ECO's decision, the claimant had not passed the English language test at level A1 as Appendix FM requires.
3. The claimant accepted that his English was poor. The sponsor was learning Arabic. They had family support from the claimant's father, who considered that the sponsor was a 'nice wife' for him and had purchased a flat in Cairo which the couple could use when they visited Egypt.
4. The refusal is dated 29 April 2012; the claimant appealed on 23 May 2012 and on 28 May 2012, after Special Arrangements had been made to assist him, he passed the English language test at level A2. The Entry Clearance Manager's review of his application on 25 November 2012 post-dated the claimant passing the test but the Entry Clearance Officer's refusal decision was made just under a month before he passed it.
5. The First-tier Tribunal judge heard evidence from the claimant's wife, the sponsor, who also appeared before me. Her evidence was accepted as credible, and the evidence she produced resolved almost all of the issues under appendix FM which had caused the application to be refused. There remained the question of the claimant's language ability in English. The claimant had passed the English language test at level A2 on 28 May 2012,
6. The material part of the decision is in paragraph 23:
"I have seen a letter dated 18 July 2012 from the sponsor to the Tribunal dated 18 July 2012. The letter confirms that Special Arrangements were previously refused by the Examination Services in Cairo but that decision was reversed in an e-mail of 28 May 2012. The appellant was given 50% extra time, separate invigilation, a special requirements speaking pack, a speaking test with a dummy partner, a special needs listening test paper and a special needs CD. He passed the key English test (level A2) with a score of 71/100 in June 2012. I find that the English language requirement was met before the review by the Entry Clearance Manager. Had the respondent been aware of the appellant's success in the test then the point would have been conceded as part of the Entry Clearance Manager review."
7. The First-tier Tribunal judge allowed the appeal on that basis.

Upper Tribunal hearing
8. The sponsor was present at the hearing before me. She made no legal argument. For the Secretary of State, Mr Wilding relied on the grounds of appeal. The claimant had known at the date of application that he could not meet the English language requirement of the Rules and the fact that with Special Arrangements he had met it at a later date, five days after filing his notice of appeal against the decision to refuse him entry clearance, did not remedy the defect in his application.
9. I indicated to the sponsor at the hearing that I agreed with Mr Wilding. I gave an oral decision which forms the basis of this determination.
Discussion
10. The requirement for English language at level A1 appears in appendix FM at paragraph E-ECP.4.1:
"English language requirement
E-ECP.4.1. The applicant must provide specified evidence that they-?
(b) have passed an English language test in speaking and listening at a minimum of level A1 of the Common European Framework of Reference for Languages with a provider approved by the UK Border Agency; ? or
(d) are exempt from the English language requirement under paragraph EECP. 4.2.
E-ECP.4.2. The applicant is exempt from the English language requirement if at the date of application- ?
(b) the applicant has a disability (physical or mental condition) which prevents the applicant from meeting the requirement; ...."
11. The Secretary of State did not accept that the claimant's disability prevented him from meeting the requirement. She has been proved right in that, since with special arrangements, he was later able to meet it. However, the claimant did not meet that requirement at the date of application, nor before filing grounds of appeal. He met it between the appeal and the ECM's review of his case. He does not now argue that his disability was such that he was prevented from meeting the requirement and is exempt from the English language test.
12. The date of application for these purposes is as set out in paragraph 34G of the Rules:
"Determination of the date of an application (or variation of an application or claim) in connection with immigration
34G. For the purposes of these rules, the date on which an application or claim (or a variation in accordance with paragraph 34E) is made is as follows:
(i) where the application form is sent by post, the date of posting,
(ii) where the application form is submitted in person, the date on which it is accepted by a public enquiry office of the United Kingdom Border Agency of the Home Office,
(iii) where the application form is sent by courier, the date on which it is delivered to the United Kingdom Border Agency of the Home Office, or
(iv) where the application is made via the online application process, on the date on which the online application is submitted."
13. The application date preceded the passing of the test and the claimant had not even sat the test when he applied. The date of decision is that of the Entry Clearance Officer, not the Entry Clearance Manager.
14. In the result although the judge was entitled to reach the conclusions she did on the evidence before her, in relation to all the other requirements of Appendix FM, so far as the English language is concerned, her conclusion that the claimant had met the requirement by the 'date of decision', treating that as the date of the Entry Clearance Manager's review of the Entry Clearance Officer's decision, is plainly wrong. The decision of the Court of Appeal in Secretary of State for the Home Department v Raju & Ors [2013] EWCA Civ 754 is clear as to the proper approach to ascertaining the dates of application and decision, and the application itself made it clear that the claimant knew he had not met all the requirements of the Rules.
15. The First-tier Tribunal Judge erred in finding that the English language requirements were met and allowing the appeal. That is a material error of law. I therefore set aside the First-tier Tribunal's decision and re-make the determination.
16. The positive findings of fact in relation to all other elements of the Rules which are set out at paragraph 12 and paragraphs 18 to 22 are maintained, but I find that the claimant did not produce to the Entry Clearance Officer with his application for settlement, evidence that he had passed the English language requirements at the relevant standard.
17. I substitute a decision dismissing the appeal.

Signed Date 24 September 2013

Upper Tribunal Judge Gleeson